Time Card Reloaded? – The “Time Recording Judgement” Of The ECJ – Consequences For Employers

The judgment of the European Court of Justice (ECJ) of 14 May 2019 (Case C-55/18) continues to cause unrest and uncertainty: it requires employers to establish an objective, reliable and accessible system for measuring the daily working time of each employee. The judgment is based on the Working Time Directive (2003/88/EC), the observance of which must be ensured.

What exactly must be recorded?

Daily working time must be fully recorded. This includes the hours actually worked, their time situation and working time in excess of regular working hours (overtime work).

 What does apply currently?

Currently, there are wide duties: Companies are obliged to record any working time exceeding 8 hours per day (§ 16 Abs. 2 ArbZG). Also the working time (including starting and ending) of truck drivers (§ 21a ArbZG) and of minor employees (§ 17 MiLoG) has to be recorded. Violations of these duties can lead to high penitent fees.

When do employers have to record working time? – Does the ECJ judgment have a direct and immediate effect?

Many employers are unsure whether the judgement will apply to them immediately. This is probably not the case in a direct way. The European Court of Justice has called on the member states of the EU to enact legal regulations which oblige employers to record working time accordingly in the future. Currently, as long as these laws do not yet exist, there is no obligation for companies to implement them. However, this is not uncontroversial. There are opinions that the authorities are entitled to go ahead and to interpret the German law in accordance with the EU jurisdiction and the directives. It has a lot to commend it.

Those who want to be absolutely sure should already instruct their employees to record their working time.

How should working time be recorded?

The judgement does not specify the type of time recording. The legislators have a certain flexibility here. Special features of the field of activity and peculiarities of certain companies (e.g. company size) can be taken into account. The legislator can therefore provide exceptions for smaller companies. Following the ruling and in the absence of any legal provisions to date, there is (still) no definition of the type of time recording (paper, time clock, electronic time recording).

Who must record working time?

It will depend on the new legal regulations in the respective Member State whether the employer or the employee has to record the working time or whether the employer may outsource these tasks to the employee. This should remain possible in order to avoid impracticable regulations, e.g. for field staff. Regular spot checks by the employer should suffice but must be really done. Otherwise, the end of trust-based working hours will really be heralded.

Are there already any other concrete consequences for employers to fear?

The judgement can have effects in pending law cases regarding overtime and its compensation, if and so far one reads out consequences for the statement and burden of proof of the employer. The employer might no longer prevail with the lapidaren objection that the employee must prove the producing of the overtime.